s.536LU - Application for an unfair deactivation remedy

[1] On 24 January 2026, Mr Daizzy Daizzy (Mr Daizzy) filed an application (Application) pursuant to section 536LU of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly deactivated by Portier Pacific Pty Ltd (Uber Eats).

[2] On 28 January 2026 Uber Eats was directed to file a response to the Application by no later than 4 February 2026. On 2 February 2026 Uber Eats filed a Form F53 notifying the FWC that it had engaged Dentons Australia Limited (Dentons) to act for it however neither Uber Eats or Dentons filed a response to the Application as directed.

[3] On 3 February 2026, the Application was allocated to my Chambers for determination.

[4] On 5 February 2026 Uber Eats was directed to file a response to the Application by no later than 6 February 2026. On 6 February 2026 Uber Eats filed a Form F89A - Response to an application for an unfair deactivation remedy raising the Jurisdictional Objection asserting that it had complied with the Digital Labour Platform Deactivation Code when deactivating Mr Daizzy (Jurisdictional Objection).

[5] Directions were issued to parties on 6 February 2026 which were amended on 9 February 2026 (Directions). The Directions required Uber Eats to file materials in relation to the Jurisdictional Objection and the merits of the Application by 4pm (AWST) on 17 February 2026. The Directions required Mr Daizzy to file materials in response by 4pm (AWST) on 24 February 2026. The Directions also required the parties to jointly file an Agreed Statement of Facts and a Digital Court Book by 4pm (AWST) on 3 March 2026. The parties were advised that compliance with the Directions was mandatory and that a failure to do so may disadvantage the party concerned.

[6] On 12 January 2026 Uber Eats sought an extension of time to files its materials until 4pm (AWST) on 24 February 2026. Uber Eats were granted an extension until 4pm (AWST) on 20 February 2026 to file its materials and Mr Daizzy was given an extension until 4pm (AWST) on 27 February 2026 to file his materials. The filing dates for the Digital Court Book and Agreed Statement of Facts remained unchanged.

[7] A Notice of Listing was issued to parties on 13 February 2026 informing them that they were required to attend a Hearing in person in Perth at 10:00am (AWST) on 13 March 2026 (Hearing).

[8] A further Notice of Listing was issued to parties on 18 February 2026 informing them that they were required to attend a Conference in person in Perth at 12:30pm (AWST) on 27 February 2026 (Conference). The Notice of Listing stated that it was mandatory to attend the conference and failure to attend may disadvantage the party concerned, including the application being dismissed.

[9] Mr Daizzy did not seek an adjournment of the Conference or Hearing. He was copied into correspondence in which Uber Eats requested and was granted leave to participate in the Conference by video link. Mr Daizzy did not seek leave to participate in the conference remotely.

[10] On 20 February 2026 Uber Eats again sought an extension to file its materials. In that correspondence Uber Eats noted that it had emailed Mr Daizzy to seek his consent to the extension but had not received a response. The same day the parties were informed that the extension request had been denied given that Uber Eats had been on notice of the Application since 24 January 2026 and had already been granted an extension to file its materials.

[11] Notwithstanding that the extension request was declined Uber Eats did not file its materials until 23 February 2026.

[12] On 24 February 2026 Chambers sent correspondence to the parties reminding them that Mr Daizzy's materials were due by 4pm (AWST) on 3 March 2026 and the Digital Court Book and Agreed Statement of Facts were due the following day.

[13] On 26 February 2026 Chambers endeavoured to contact Mr Daizzy using the contact details contained in the Application to confirm his receipt of the amended filing dates and confirm his attendance at the Conference. Mr Daizzy was uncontactable so Chambers sent an email to Mr Daizzy confirming this information.

[14] Mr Daizzy did not attend the Conference listed at 12:30pm (AWST) on 27 February 2026. Chambers endeavoured to call Mr Daizzy shortly after the listed start time of the Conference but he was uncontactable. Chambers then sent Mr Daizzy an email informing him that if he did not contact Chambers urgently the Conference would be vacated.

[15] At 4:48pm on 27 February 2026, Chambers sent an email to Mr Daizzy informing him that I proposed to dismiss the Application pursuant to section 587 of the Fair Work Act 2009 (Cth) following his failure to attend the Conference and providing him with the opportunity to file submissions providing reasons as to why he did not attend the Conference at the FWC and evidence to support his reasons. He was informed that these materials were required to be filed by no later than 4pm (AWST) on 3 March 2026. In the same correspondence the Parties informed that in the interim they were still required to comply with the Directions and that a failure to do so may disadvantage the party concerned.

[16] Six minutes later Mr Daizzy responded for the first time to any communication from Chambers stating:

[17] Mr Daizzy did not provide any evidence of his location. Mr Daizzy did not provide any explanation as to why he had not responded to any earlier correspondence to Chambers nor any explanation why he had not sought an adjournment of the Conference. Mr Daizzy did not seek any extension to file his materials.

[18] At 5:55pm the same day Chambers wrote to Mr Daizzy again inviting him to provide reasons and evidence in relation to his failure to attend the Conference or seek an adjournment of the Conference and reminding him that his materials pursuant to the Directions were due to be filed by 4pm (AWST) on 3 March 2026. Chambers warned Mr Daizzy that if he failed to file these materials this would be taken into account by me when determining whether the Application ought to be dismissed pursuant to section 587 of the FW Act.

[19] Mr Daizzy did not file his materials by 4pm (AWST) on 3 March 2026 nor has he filed any materials since. Mr Daizzy did not seek an extension to file his materials. Mr Daizzy provided no further evidence or submissions in relation to his failure to attend the Conference by 4pm (AWST) on 3 March 2026 or since.

[20] On 4 March 2026 Chambers notified the Parties that the Application had been dismissed. This decision sets out the reasons for that decision.

[21] On 4 March 2026 after being informed of my decision to dismiss the Application Mr Daizzy wrote to Chambers stating that he had travelled to India because his brother was unwell and that he had not seen correspondence from Chambers because he had some 'network' issues.

[22] The following day Mr Daizzy wrote to Chambers again explaining that he had left Australia because his brother was unwell and that he had not responded to Chambers because he was stressed by his deactivation and his phone battery was not 'functioning reliably'.

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

• [24] The FWC is obliged to perform its functions and exercise its powers in a manner that is fair and just, quick, informal and avoids unnecessary technicalities.[1]

• [25] The power to dismiss a substantive application should only be exercised cautiously and sparingly.[2]

• [26] In Mcleod v Kulgera Trading Company Pty Ltd,[3] Vice President Catanzariti dismissed a section 365 application on his own initiative pursuant to section 587 on the grounds that the applicant had not responded to the FWC's repeated attempts to get in contact with her and had failed to participate in a teleconference.

• [27] In doing so, the Vice President relied on a decision of Commissioner Gooley (as she was then) in Rebecca Tomas v Symbion Health[4] in which she stated:

"[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and (c) do not limit Fair Work Australia's power to dismiss matters for other reasons."

• [28] In a number of cases since the FWC has accepted that section 587 provides a power to dismiss an application where there is an unreasonable or unexplained non-compliance with directions of the FWC.[5]

[29] The Directions set out clearly what Mr Daizzy was required to file and when. He was provided with access to materials to assist him prepare his materials or to obtain assistance to prepare his materials.

[30] Given the extensions sought by Uber and the late filing of their materials Mr Daizzy was given multiple extensions to file his materials.

[31] There is no medical evidence before me to suggest that Mr Daizzy was unable to prepare his materials or provide instructions to a representative to prepare them on his behalf. As at the date of these reasons for decision Mr Daizzy has still not filed any materials.

[32] The Notice of Listing set out clearly when the Conference was listed to occur. Mr Daizzy was informed that he could apply to attend remotely and was a recipient of various correspondence in which Uber Eats sought and was granted leave to participate remotely.

[33] Chambers sent multiple emails to Mr Daizzy and endeavoured to contact him multiple times to remind him to file his materials and to attend the Conference.

[34] There is no medical evidence before me to suggest that Mr Daizzy was unable to attend the Conference or any medical evidence he was unable to prepare his materials or provide instructions to a representative to prepare them on his behalf.

[35] It was not until he was informed that I had dismissed the Application that Mr Daizzy provided any additional information about his failure to attend the Conference or file his materials. He did not provide any evidence in support of these reasons or explain how he was able to receive and respond to some correspondence from Chambers but not others.

[36] It is a precondition to the granting of any remedy for deactivation that the FWC must be satisfied that Uber Eats did not comply with the Digital Labour Platform Deactivation Code.

[37] The only material that I have from Mr Daizzy is the completed Form F89 - Application for an unfair deactivation remedy. As it stands, there is no evidence currently before me on which I could be satisfied that jurisdiction exists for me to determine the merit of the Application or that the Application has merit. In fact based on the detailed submissions and evidence filed by Uber it is difficult to see how Mr Daizzy could successfully overcome the Jurisdictional Objection.

[38] I therefore dismissed the Application pursuant to section 587 of the FW Act for the reasons set out above.

[2] Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925.

[3] [2014] FWC 2112.

[4] [2011] FWA 5458.

[5] See for example: Application by Monserrarah Duke [2021] FWC 5319, Application by Hang Li [2021] FWC 5348.

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